C.S. Dharmadhikari, J.
1. This is an appeal filed by the original plaintiffs against the order passed by the City Civil Court, Bombay in Notice of Motion No. 2357 of 1981 on 1st of May, 1981 in L.C. Suit no. 2672 of 1981, dated 18th of August, 1981 dismissing the said notice of motion is an admitted position that the present appeal has been filed under order 43 read with section 104 of the Code Civil Procedure.
2. In the suit plaintiffs claimed that they were in possession of the disputed land. It is an admitted position that in the Town Planning Scheme the land in dispute was given plot No. 1215 and was allotted to one Peter Louis who in his turn assigned it to M/s. Sanghi Motors Ltd. M/s. Sanghi Motors Limited and Shri Loise filed a petition before this Hon'able Court against the Bombay Municipal Corporation bearing Misc. Petition No. 906 of 1972 wherein a statement was made on behalf of the Corporation before the High Court that they will take immediate steps to stop the nonconforming use of the structure on this plot by launching prosecution, in view of this statement the petition came to be withdrawn by the petitioners and thereafter the plaintiff No. 1 was prosecuted under the provisions of the Maharashtra Regional Town Planning Act, but was acquitted. The M/s. Sanghi Motors Ltd. also filed suit in small causes Court, Bombay against plaintiffs and the said suit the was dismissed as not maintainable. The Corporation then called upon the plaintiffs to show documentary evidence. It then appears that the matter was against brought before the High Court by Sanghavi Motors Ltd. in Misc. Petition No. 1668 of 1975 which was decided by Pendse, J., on 11th October, 1979. Pendse, J., after making a reference to the decision of the Supreme Court in Municipal Corporation of Greater Bombay v. The Advance Builders India Pvt. Ltd., reported in 75 Bom lr 355 and the decision of the Division Bench of this Court consisting of the Chief Justice Kantawala and Mr. Justice Tulzapurkar, dated 9th October, 1973 in Appeal No. 135 of 1969, and the decision of Justice Deshmukh dated, 23rd November, 1977 in Misc. petition No. 288 of 1970, came to the conclusion that it is the statutory duty of the Corporation to put the allottee of the final plot in actual possession. Accordingly, the rule was made absolute in the said petition and the corporation was directed to enforce the final Town Planning Scheme, Bombay City No. IV, Mahim area and put the M/s Sanghavi Motors Ltd. in actual and Physical possession after removing all the huts, sheds and temporary structures on the final plot No. 1215. The Corporation was further directed to enforce the scheme and put the M/s. Sanghavi Motors Ltd. in possession according to the provisions of law within a period of one year from the date of the judgment. It appears that thereafter betterment charges were paid by the said M/s. Sanghavi Motors Ltd. and the Corporation issued notice to the plaintiffs under sections 89 and 90 of the Maharashtra Regional Town Planning Scheme Act, 1966, herein after called as the Act. In substance it is these notices which were challenged in the present suit by the plaintiffs.
3. The defendants, that is, the Corporation and its Ward Office justified their action under Law. They also contended that the plaintiffs were already offered alternate accommodation as per the policy of the Corporation. They also contended that the Civil Court has no jurisdiction to entertain the suit in view of the provisions of the Town Planning Act. On the basis of the pleadings of the parties the learned Judge of the City Civil Court, Bombay framed the following issues :
(1) Whether growing of garlic and giving treatment is an industry ?
(2) Whether this Court has jurisdiction to entertain this suit ?'
After hearing the arguments in details the learned Judge of the City Civil Court, Bombay came to the conclusion that under the provisions of the Town Planning Act all rights in the original plots which have been reconstituted, stood extinguished and, therefore, the plaintiffs have no right or title in the property. He also came to the conclusion that growing of garlic and giving treatment to it cannot be termed as an industry. In this view of the matter the notice of motion was dismissed and as already observed it is this order which is challenged in this appeal under section 104 of the Code of Civil Procedure.
4. Shri Joglekar, the learned Counsel appearing for the appellants plaintiffs contended before me that to the earlier petition decided by Pendse, J., the plaintiffs were not parties and therefore, the said judgment is not binding upon them. He also contended that the notices given by the Corporation under sections 89 and 90 are wholly illegal. In reply to the notices the plaintiffs had raised several contentions questioning the action taken by the Corporation as Planning Authority and, therefore, the matter could be finally decided by the State Government or any Officer authorised by it in that behalf under section 90(3) of the Act and unless the said matter is decided by the Government, the Corporation cannot take any further action in the matter of demolition etc. He also contended that cultivation of garlic is an Industry and, therefore, it should have been held by the learned Judge of the trial Court that the land is being used for the industrial purpose within the meaning of the scheme and hence there is no non-conforming use of the land; hence there is no contravention. He also contended that in any case unless the parties are given an opportunity to lead evidence, an issue in that behalf could not have been decided. These are the only contentions raised and argued before me by Shri Joglekar.
5. On the other hand it is contended by Shri Shetty and Shri Gavaskar, the learned Counsel appearing for the respondents that whatever rights plaintiffs had in the land or structures in dispute stood extinguished after coming into force the final scheme. In view of the provisions of law it was the duty of the Corporation as a Planning Authority to implement the scheme and deliver vacant possession to the allottees and owners. In view of this in the petitions filed before this High Court, Pendse, J., issued writ of mandamus directing the Corporation to deliver actual physical possession to M/s. Sanghavi Motors Ltd. After removing all huts etc. The Corporation had issued notices as per the writ issued by the High Court and therefore the Civil Court had no jurisdiction to entertain the suit for injunction restraining the parties from executing the writ of the High Court. The learned Counsel further contended that the term 'Agricultural' has been defined in the Act and the activities carried out by the plaintiffs assuming but not admitting that what they have stated in the plaint to be true, is wholly covered by the said definition 'Agricultural' and, therefore, could not be termed to be industrial purpose within the said expression as understood under the town Planning Act and/or Scheme. They also contended that in view of the provisions of entertain the suit and, therefore, the learned Judge was right in dismissing the notice of motion as well as returning the plaint.
6. As to what is the effect of framing of the scheme is by now well settled in view of the decision of the Supreme Court in Municipal Corporation Greater Bombay v. The Advance Buildings India Pvt. Ltd. 75 Bom lr 355. As held by the Supreme Court the necessary effect of the finalisation of the scheme and its coming into force, is that all rights in the original plots of the private owners would determine and if, in the scheme reconstituted or final plots are allowed to them, they shall become final subject to the rights settled by the Arbitrator. As observed by the Supreme Court it is inherent in every Town Planning Scheme that titles are liable to be displaced and an owner may get a reconstituted plot which belonged, prior to the Final Scheme, to some other owner. The Supreme Court has also held in the said decision that it is the duty of the Planning Authority to remove all the structures and sheds etc. which contravene the Town Planning Scheme itself. Apart from the said decision in view of the decisions in this Court to which a reference is made by Pendse, J., it is the statutory duty of the Corporation to put the allottee of the final plot in actual physical possession. If this is so then obviously the notices issued by the Corporation were issued in furtherance of their statutory duties as well as the directions issued by the High court in Misc. Petition No. 1668 of 1975. The question as to whether the present plaintiffs were necessary parties to those proceedings or not is also irrelevant in view of the decision of this Court. In this context a reference could be made to an order of this Court dated 28th April, 1980 in Appeal from Order No. 437 of 1977 and others. Anna Saheb Baburao Nisma and others v. The Bombay Municipal Corporation and other, wherein a reference was also made to the earlier decision in Misc. Petition No. 288 of 1970 dated 23rd November, 1977, Laxmidas Dharsibhai v. Municipal Corporation Greater Bombay & others, wherein this Court observed as under:
'I do not therefore think that the question of joining the parties is open for discussion at all in view of the direct position made clear by the Division Bench of this Court and the necessary implication of the orders passed by the Supreme Court in Advance Builders' case. This being my view though certain judgment of the learned Single Judge have taken a contrary view, with respect, it is not necessary for me to refer the petition to a larger bench, since in my view, as pointed out earlier, the issue is covered by express decision and necessary implications of this Court and the Supreme Court it is my bounden duty to follow that conclusion drawn by the Supreme Court.'
Therefore, in this view of the matter it is not possible for me to accept the contentions of Shri Joglekar in this behalf.
7. Once it is held that on coming into force of the final scheme and title or interest in the land stood extinguished and the reconstituted plots became subject of the rights settled by the Arbitrator along in view of the provisions of the section 88 of the Act, then the plaintiffs cannot be heard that they had any subsisting right in the plots.
8. Even otherwise the right which is claimed by the plaintiffs is on the basis of the fact that they are using the land for the purpose of the scheme i.e. for growing garlic, which is an industry. According to the averments made in the plaint the plaintiffs are using the lands for the purpose of cultivating the same i.e. for growing garlic vegetable etc. and in the shed he is carrying on the industry i.e. cleaning and treating the garlic grown in the said open space of land. The learned Judge of the trial Court after making a detailed reference of these averments, came to the conclusion that this does not amount to an industry within the contemplation of the Town Planning Act. Admittedly the plot has been declared in the Town Planning Act to be reserved and used for the industrial purpose. Though the term 'industry' is not defined in the Act, the term 'agricultural' is defined which obviously includes cultivation of garlic and vegetable. In the Act the phrases 'industrial' and 'agricultural' are distinctly used and understood. Under section 14(a) while dealing with the allocation of the land for different uses, legislature has used the term 'industrial' and 'agricultural' distinctly and differently. In the Act term 'agricultural' has been defined. Therefore, by necessary implication what is included in the definition of 'agricultural' cannot be termed as 'industrial'. Therefore, in my opinion the said contention of Shri Joglekar was also rightly rejected by the trial Court.
9. Shri Joglekar has also placed reliance upon section 90 of the Act and has contended that unless the matter is decided under section 90 sub-section (3) of the Act, further steps could not be taken by the Planning Authority. It is not possible for me to accept this contention also for more than one reason. In the Advances Builders' case the Supreme Court had an occasion to consider the provisions of present Act also and it was observed by the Supreme Court that section 55 of the Act corresponds to section 90 of the new Act and is practically the same in contents. If this is to then the present case is not covered by section 90(3) of the Act. According to Shri Joglekar after his reply the Planning Authority should have made a reference to the Government under section 90(3) of the Act and as such a reference is not made, the notice issued by the Planning Authority is bad, it is an admitted position that no reference is made to the Government either by the plaintiffs or by the Planning Authority. Sub-section (3) of section 90 makes a provision for such a reference and further lays down that the decision of the Government or the Competent Officer, shall be final, conclusive and binding upon the all persons. Taking the word 'reference' in its strict sense it relates to a mode of determining questions by Government it only means submission of the controversy to the State Government. From the bare reading of the section itself, it appears that the reference should be made by any of the parties. However, it is not necessary to probe into this question any further, nor it is necessary to decide the question as to who can make reference to the Government in case of dispute. It is an admitted position that neither the plaintiffs nor the Corporation have chosen to make any reference in this behalf and therefore it cannot be said that there is anything pending before the Government under section 90(3) of the Act, moreover in view of the findings already recorded there is no subsisting dispute or question which requires determination by the Government. In the present case question raised by the plaintiffs already stand determined and decided, and therefore, recourse to the provisions of section 90(3) of the Act is wholly uncalled for.
10. Even otherwise as already observed the Corporation has taken action as per the directions issued by this Court in Misc. Petition No. 1668 of 1973 on 11th of October, 1979. It is really doubtful as to whether having regard to the judicial discipline and the principles incorporated in the Specific Reliefs Act, a subordinate Civil Court can injunct anybody from executing the writ issued by this Court. In my opinion even on the touch stone of propriety or equity such an injuction restraining the Corporation from executing the writ issued by this Court could not have been issued by the Civil Court or State Government. The scheme became final in the year 1963. It came into force in the same year. Right from the year 1963 up-to-date, the plaintiffs have blocked the execution of the scheme and this is so inspite of the writ issued by this Court. As contended by the Corporation an alternate plot was already offered to the plaintiffs. Further I am informed that proceeding under Contempt of Courts Act are already instituted against the Corporation for not executing the order or implementing the writ of this Court within the time prescribed. In these circumstances even the balance of convenience is not in favour of the plaintiffs. Therefore, in any view of the matter it will have to be held that the plaintiffs were not entitled to any reliefs and the suit field was also not maintainable in view of the provisions of section 149 of the Act. As I am in general agreement with the findings recorded by the trial Court, it is not necessary to make a detailed reference to the material on record or restate the reasons for the findings over again.
In the result, therefore, the appeal fails and is dismissed with costs.